- The Washington Times - Thursday, January 17, 2019

The State Department said Thursday it has found enough cash to recall most of its employees and to pay them at least one check during the partial government shutdown, adding a new dimension to President Trump’s piecemeal plan to blunt the pain.

The department said workers will return Jan. 20 and Jan. 22, depending on their posts.

They join Food and Drug Administration inspectors, about 2,500 Agriculture Department workers and tens of thousands of IRS workers pulled off furlough and headed back to work even though Congress and Mr. Trump have yet to approve a new round of funding.

By recalling workers, the administration will dampen the public-facing pain of the shutdown, which entered a record 27th day on Thursday and shows no sign of ending soon.

The government is now in uncharted legal territory, and the moves are raising all sorts of questions, including why it took so long to decide to bring the workers back — and whether the decisions are legal.

Sen. Chris Murphy, Connecticut Democrat, said it’s true that as a shutdown goes on, more people become essential, so there might be some flexibility for the administration. Yet he’s worried the situation is turning into an episode of HBO’s “Veep,” in which Julia Louis-Dreyfus’ character deems people essential and non-essential by the hour, depending on what she needs.

“That sort of feels a little bit like what’s happening in the administration right now,” he said.

The State Department said its employees will be paid — on time — Feb. 14 for their work, though it is unclear if they can cover future pay periods.

Legal experts said the move raises questions around why it sent workers home in the first place, though employees at the State Department who are getting paid could lose their chance to argue in court that being forced to work without pay is unconstitutional.

“An employee being paid would not have standing to sue — they are working as if the shutdown is not occurring,” said Sam Berger, a senior adviser at the Center for American Progress who served as a budget office lawyer in the Obama White House.

The National Treasury Employees Union, though, says the situation is different for 46,000 IRS workers recalled to handle tax filing season without pay.

NTEU lawyers argue the executive branch is wielding a “blank check” to demand work and dampen the public backlash to the shutdown, while it holds out for border wall funding. They were unable to get a temporary restraining order against the government that would allow workers to decide to stay home, though the courtroom fight continues.

Legal experts say requiring some workers to come off furlough and work without pay could invite new legal challenges.

“Someone could file an affirmative suit. This could easily be one of the recalled workers, for whom this unpaid work is interfering with their ability to get money right now to meet their family’s needs, perhaps by driving for Lyft or the equivalent,” said David Super, a professor at the Georgetown University Law Center.

Others said it’s unclear what the courts would do, particularly given the skimpy explanations some agencies have giving for their decisions.

“We are officially in uncharted territory, given the administration’s refusal to compromise and end the longest government shutdown in history — and past shutdowns have never lasted long enough to get to this outcome,” said Elizabeth Klein, deputy director of the State Energy and Environmental Impact Center at the New York University School of Law.

Rep. T.J. Cox, California Democrat, said he is concerned about the “very substantive legal issues” around the recalls, though his top worry is the roughly 800,000 federal workers who aren’t receiving paychecks.

People trying to pay their mortgage or buy medicine, he said, “don’t care about legal issues.”

The congressman filed a bill Thursday that would require the Treasury to offer zero-interest loans of up to $6,000 during the shutdown. It’s a creative stopgap measure to ensure employees have enough cash to make ends meet, though more traditional means are available to some workers.

During a shutdown, federal workers who aren’t deemed essential and have been furloughed can generally seek unemployment benefits, akin to requirements state use for laid-off workers, according to Labor Department guidance.

Federal employees who receive benefits but get full backpay at the end of the shutdown will, in most cases, have to pay back any benefits, however.

Essential, or “excepted,” employees who remain on the job are not considered unemployed and cannot tap benefits.

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